Aid in Dying in Montana: A Watershed in the Movement for End-of-Life Choiceby Barbara

On New Year’s Eve 2009, Montana’s Supreme Court handed down the ruling in Baxter v. Montana and authorized the practice of aid in dying for mentally competent, terminally ill adults. The Court declared that such a patient may request medication that could be ingested to ensure a peaceful death. They ruled that a physician providing such medication does not violate public policy and is safe from prosecution.

It was a remarkable ruling in many ways. With subsequent legislative events, the Court’s findings created a watershed between previous assisted-dying advocacy typified by Oregon’s Death with Dignity Act and the new era, in which patient choice becomes integral to the scope of medical practice at the end of life.

Early in 2010 the medical practice of aid in dying began to take shape in Montana. Terminally ill patients began to ask about this option, now openly available. Willing physicians began to evaluate their requests and measure them against the qualifying standards laid out by the Court. Montana physicians sought guidance from doctors with years of experience in Oregon and Washington. The state medical society engaged counsel to explain the Court’s ruling, and received confirmation that aid in dying was a choice Montanans were entitled to make and physicians providing it were not subject to criminal prosecution.Hospices began to consider policies and practices if a patient requested life-ending medication or decided to self-administer it while under hospice care. One year later patients, families, physicians and healthcare providers across the state already had personal experience – or knew someone who had personal experience – with aid in dying.

When legislators convened in Helena in January 2011, they considered two bills related to aid in dying. One would nullify the Court’s ruling and repeal the end-of-life freedom people had come to appreciate. The other itemized the steps to evaluate a request and provided civil and regulatory immunity for following them. Neither bill passed a committee or reached the Governor’s desk.

Montana residents now enjoy the freedom of knowing one of the most important, private, intimate and meaningful decisions in life is safe from blockade or intrusion from prosecutors or authoritarian busybodies.

Here are some aspects of the ruling that will, from now on, direct the flow of liberty at life’s end:

·The Montana Supreme Court called the practice “aid in dying” and enshrined that name in a legal context. Professional associations, medical and legal scholars, and ethics publications had adopted this term for the medical practice that gives patients peace of mind and control over their dying and distinguish it from “suicide.” But never before had the term of art achieved legal authority.

·Montana recognized that requests for aid in dying were akin to other already permissible end-of-life choices, as contemplated in the autonomy protected under the state’s Rights of the Terminally Ill Act. The Court reasoned if state law protects decisions that advance the time of death of a person no longer able to make healthcare decisions, it surely extends that protection to a contemporaneous decision by one fully capable of assessing treatment options and making a choice. Almost every state has adopted some version of this model Act creating the framework for advance directives. Other states could adopt Montana’s reasoning.

·The Court felt no need to impose additional government oversight or policing procedures on the medical practice it authorized. It trusted the oversight and policing of aid in dying to the same mechanisms that regulate every other end-of-life decision and practice, and indeed all of medical practice. These are the regulatory mechanisms that maintain accepted practice standards: medical peer review, medical licensing and disciplinary proceedings, civil remedies for negligent or reckless acts, and the police authority and criminal justice system in every community. Protected by these mechanisms of oversight, patients regularly make decisions that advance the time of death, and physicians implement those decisions. Patients discontinue life-sustaining treatments like dialysis and ventilation. They ask that cardiac pacemakers and implanted defibrillators be deactivated. And they voluntarily stop eating and drinking and receive medical comfort care as they fast. Medicine is the most regulated and supervised profession in existence, and the controls in place are able to keep aid in dying as safe as other end-of-life decisions.

In 1976 the New Jersey Supreme Court ruled that Karen Ann Quinlan had a right to refuse artificial ventilation, beginning a line of jurisprudence that protects healthcare decisions, even if they advance the time of death. (In re Quinlan) The Quinlan court imposed no extraordinary governmental policing on the newly recognized right. So it is with Baxter, and the Baxter ruling is to aid in dying what Quinlan was to withdrawal of mechanical ventilation. The Montana experience is ongoing, with aid in dying governed by standards of practice and the same regulatory procedures as all medical care. Its impact will likely reach across our nation. As our path leads forward from this point, we draw water from the streams that flow from Montana. Baxter is the watershed.